UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CAMBRIDGE UNIVERSITY PRESS,
et al.,
Plaintiffs,
Civil Action No.
1:08-CV-1425-ODE
-vMARK P. BECKER, in his official
capacity as President of Georgia State
University, et al.,
Defendants.
DEFENDANTS’ BRIEF IN OPPOSITION TO PLAINTIFFS’
MOTION TO AMEND THEIR TRIAL EXHIBIT LIST
Pursuant to Local Rule 7.1(B) and the Court’s May 10, 2011 Order (Dkt.
294) directing Defendants to file their response, if any, by May 12, 2011,
Defendants Mark P. Becker, et al., hereby file this response in opposition to
Plaintiffs’ Motion to Amend Their Trial Exhibit List (Dkt. 291) (“Motion”).
Defendants do not object to the amendment of Plaintiffs’ exhibit list to include the
document
Bates
numbered
OUP900003-OUP900005,
which
Plaintiffs
inadvertently left off their exhibit list (See Dkt. 291 at 2), reserving all other
objections regarding this document and the associated allegation of infringing use.
Defendants oppose the balance of Plaintiffs’ motion.
The issue before this Court is whether Plaintiffs will suffer a manifest
injustice if the pretrial order is not amended to add to Plaintiffs’ exhibit list seven
irrelevant and prejudicial documents that were in Plaintiffs’ or their affiliates’
possession at the time the proposed pretrial order was filed.
In the Motion, Plaintiffs move this Court to amend the pretrial order signed
by this Court May 2, 2011. (Mot., Dkt. 291; Pretrial Or., Dkt. 280 at 20.) The
pretrial order, in accordance with Local Rule 16.4(B)(29) and Federal Rule of Civil
Procedure 16(e), states that the Pretrial Order “shall not be amended except by
Order of the court to prevent manifest injustice.” (Dkt. 280 at 20 (emphasis
added)); see Fed. R. Civ. P. 16(e) (“The order following a final pretrial conference
shall be modified only to prevent manifest injustice.”); LR 16.4(B)(29), NDGa
(providing limiting language for pretrial order).
Plaintiffs have not even attempted to establish any manifest injustice. At
most, Plaintiffs claim that these seven additions would not prejudice Defendants,
and about this they are wrong. The Defendants would suffer prejudice.
First, not only were the documents not listed in the pretrial order, but over
half of them were not provided to Defendants until the day the instant motion was
2
filed. (See Email from T. Larson to S. Schaetzel, attached hereto as Exhibit A.)
Plaintiffs excuse for not having previously even looked for these documents is that
they were motivated to find them in response to Defendants’ Motion In Limine to
Exclude Evidence of Alleged Infringement of Improperly-Asserted Copyrights
(Dkt. 277), filed the same day as the proposed pretrial order. (Dkt. 291 at 2-3.)
But Plaintiffs were under an obligation to look for and produce two of these four
documents pursuant to this Court’s scheduling order of November 5, 2010, which
provided that “Plaintiffs shall produce . . . [s]upplemental responses to Defendants’
document requests and interrogatories relating to Plaintiffs’ ownership and/or
licensing of the subject works.” (Dkt. 240 at 2.)1 It cannot be a manifest injustice
to disallow amendment of the pretrial order to add documents Plaintiffs failed to
even look for, despite this Court’s order to do so six months earlier.
Second, Defendants would be prejudiced by allowing the addition of these
two previously-undisclosed documents. Defendants have prepared their defenses
to the allegations of infringement of these two works—Vocabulary and Writing:
Resource Books for Teachers—based, in part, on Plaintiffs’ failure to produce
certain documents they now seek to add.
1
Defendants, for example, included
Plaintiffs alleged infringements of the works Vocabulary and Writing:
Resource Books for Teachers in the parties’ joint filing on March 5, 2011. (Dkt.
266.)
3
specific objections relating to Plaintiffs’ rights in these works in the parties’ joint
filing on March 15, 2010. (See Dkt. 266-4 at 9-10.) They then defended those
objections in their response to Plaintiffs’ Motion In Limine to Overrule Objections
to Evidence of Alleged Infringements (Dkt. 273). (Dkt. 289.)2 Defendants also
filed a motion in limine to exclude evidence of alleged infringement of improperlyasserted copyrights where just such documentation had not been provided (Dkt.
277), leading Plaintiffs to seek out this information in response (Dkt. 291 at 2-3)).
And Defendants have prepared their witnesses in accord with their understanding
that these documents did not exist. It is far too late for Plaintiffs to be searching
for such documents, presenting them for the first time to Defendants, and adding
them to the pretrial order.
The other two previously-undisclosed documents Plaintiffs propose to add
relate to a work not at issue in this case, Evolutionary Medicine and Women’s
Health. (See Joint Filing, Dkt. 266 at Exs. A-D.) Accordingly, those documents
are irrelevant, inadmissible, and prejudicial. These documents are the subject of
2
Defendants note that Plaintiffs’ “discovery” that they had not produced
evidence of their rights to the copyrights of certain subject works after the pretrial
order was filed validates the point in Defendants’ Brief in Opposition to Plaintiffs’
Motion In Limine to Overrule Objections to Evidence of Alleged Infringements
that until the parties have made their showings on the issue of ownership at trial, it
is premature for the Court to rule on Defendants’ objections with regard to
Plaintiffs’ ownership, and Plaintiffs’ motion (Dkt. 273) accordingly should be
denied. (See Dkt. 289 at 2-5.)
4
Defendants’ previously-filed Motion In Limine to Exclude Irrelevant Evidence in
Accordance with Order of September 30, 2010. (See Dkt. 272.) For all of the
reasons stated in that motion and the associated reply (Dkt. 301), allowing
presentation of evidence regarding works that are not the subject Plaintiffs’
allegations of infringement identified in the parties’ March 15, 2011, joint filing
would greatly prejudice Defendants.
Defendants would be forced to defend
against extraneous allegations of infringement for which discovery was not
conducted and witnesses have not been prepared, and which may infringe upon
principles of sovereign immunity.
The same is true of two more documents Plaintiffs propose to add:
EReserves reports for Fall 2005 and Spring 2006. As Defendants’ motion in
limine explains, uses of works prior to implementation of the 2009 Copyright
Policy fall outside the scope of this litigation, as defined by this Court, and are
irrelevant to establishing ongoing and continuous misuse after the adoption of that
Policy, thus placing the Court’s consideration of them in violation of principles of
sovereign immunity. (See Dkt. 301; Dkt. 272.) Furthermore, as explained in
Defendant’s reply to that motion, EReserves does not always reflect actual uses of
works thereon listed and does not indicate if a work has been licensed. (Dkt. 301
at 4-5 n.1 & n.2.) Were Plaintiffs to introduce such EReserves reports, Defendants
5
would unreasonably and prejudicially be forced to defend against allegations of use
for which Plaintiffs cannot, under principles of sovereign immunity, be granted
relief.
Because Plaintiffs have not established any manifest injustice for denying
their Motion, Defendants assert that the Motion should be denied. Plaintiffs seek
to add irrelevant evidence and evidence that is extremely prejudicial to Defendants.
Such evidence would require Defendants to defend additional, previouslyunspecified claims of infringement, and reexamine their defenses and objections
regarding existing allegations of use.
This, despite the fact that Plaintiffs or
Plaintiffs’ affiliates at all times had the relevant documents and, in four cases,
failed to produce them. In light of the hardship to Defendants and the absence of
any demonstration of injustice to Plaintiffs, Plaintiffs’ motion to amend the pretrial
order to add six of the seven specified documents (as identified above) should be
denied.
6
Respectfully submitted, this 12th day of May, 2011.
SAMUEL S. OLENS
Georgia Bar No. 551540
Attorney General
R. O. LERER
Georgia Bar No. 446962
Deputy Attorney General
DENISE E. WHITING-PACK
Georgia Bar No. 558559
Senior Assistant Attorney General
MARY JO VOLKERT
Georgia Bar No. 728755
Assistant Attorney General
/s/ Mary Katherine Bates
Stephen M. Schaetzel
Georgia Bar No. 628653
Mary Katherine Bates
Georgia Bar No. 384250
KING & SPALDING LLP
1180 Peachtree Street, N.E.
Atlanta, GA 30309
Telephone: (404) 572-4600
Facsimile: (404) 572-5100
Email: kbates@kslaw.com
7
Anthony B. Askew
Special Assistant Attorney General
Georgia Bar No. 025300
MCKEON, MEUNIER, CARLIN &
CURFMAN, LLC
817 W. Peachtree Street, NW
Suite 900
Atlanta, GA 30308
Telephone: (404) 645-7709
Facsimile: (404) 645-7707
Katrina M. Quicker
Georgia Bar No. 590859
BALLARD SPAHR LLP
999 Peachtree Street, Suite 1000
Atlanta, GA 30309-3915
Telephone: (678) 420-9300
Facsimile: (678) 420-9301
Email: quickerk@ballardspahr.com
Attorneys for Defendants
8
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 7.1D of the Local Rules of the Northern District of
Georgia, counsel for Defendants certifies that the foregoing DEFENDANTS’
BRIEF IN OPPOSITION TO PLAINTIFS’ MOTION TO AMEND THEIR
TRIAL EXHIBIT LIST was prepared in a font and point selection approved by
this Court and authorized in Local Rule 5.1C.
/s/ Mary Katherine Bates
Mary Katherine Bates
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CAMBRIDGE UNIVERSITY PRESS,
et al,
Plaintiffs,
Civil Action No.
1:08-CV-1425-ODE
-vs.MARK P. BECKER, in his official
capacity as Georgia State University
President, et al.,
Defendants.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 12th day of May, 2011, I have
electronically filed the foregoing DEFENDANTS’ BRIEF IN OPPOSITION TO
PLAINTIFS’ MOTION TO AMEND THEIR TRIAL EXHIBIT LIST with the
Clerk of the Court using the CM/ECF system, which will automatically send email notification of such filing to the following attorneys of record:
Edward B. Krugman
krugman@bmelaw.com
Georgia Bar No. 429927
Corey F. Hirokawa
hirokawa@bmelaw.com
Georgia Bar No. 357087
John H. Rains IV
rains@bmelaw.com
Georgia Bar No. 556052
R. Bruce Rich
Jonathan Bloom
Randi Singer
Todd D. Larson
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, NY 10153
Telephone: (212) 310-8000
Facsimile: (212) 310-8007
BONDURANT, MIXSON &
ELMORE, LLP
1201 West Peachtree Street N.W.
Suite 3900
Atlanta, GA 30309
Telephone: (404) 881-4100
Facsimile: (404) 881-4111
/s/ Mary Katherine Bates
Mary Katherine Bates
Georgia Bar No. 384250
KING & SPALDING LLP
1180 Peachtree Street, N.E.
Atlanta, GA 30309
Telephone: (404) 572-4600
Facsimile: (404) 572-5100
Email: kbates@kslaw.com

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